CASE OF SHAPKAROSKI AND KANEVCHE v. NORTH MACEDONIA

SECOND SECTION

CASE OF SHAPKAROSKI AND KANEVCHE

v. NORTH MACEDONIA

(Applications nos. 42520/17 and 50129/17)

JUDGMENT
 

STRASBOURG

22 October 2024

This judgment is final but it may be subject to editorial revision.

In the case of Shapkaroski and Kanevche v. North Macedonia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

 Diana Sârcu, President,
 Jovan Ilievski,
 Gediminas Sagatys, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the applications (nos. 42520/17 and 50129/17) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 June and 10 July 2017, by two Macedonians/citizens of the Republic of North Macedonia, Mr Angele Shapkaroski (“the first applicant”) and Ms Slavica Kanevche (“the second applicant”), who were born in 1955 and 1960 respectively, who live in Ohrid and who were represented by Mr J. Kostovski and Mr V. Zafirov, lawyers practising in Ohrid and Veles respectively;

the decision to give notice of the complaints under Article 6 § 1 of the Convention, concerning the fairness of the civil proceedings in which the applicants were ordered to transfer the title to parcels of land and to pay certain sums of money, and Article 1 of Protocol No. 1 to the Convention, to the Government of North Macedonia (“the Government”) represented by their Agent, Ms D. Djonova, and to declare the remainder of the application no. 50129/17 inadmissible;

the parties’ observations;

Having deliberated in private on 1 October 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applications concern civil proceedings in which the applicants, as defendants, were ordered to transfer the title to parts of parcels of land and to pay certain sums of money, which the applicants had previously received in restitution proceedings, to the claimants, who were the applicants’ collateral relatives. The value of those parcels of land and sums of money exceeded the total value of the inheritance that the applicants had received in the restitution proceedings.

2.  On 18 March 2014 the Ohrid Court of First Instance (“the first-instance court”) upheld the civil claim against the applicants and a third defendant, finding that the claimants had also been entitled to inherit parts of the property restituted to the applicants, in various percentages of its total value. The relevant parts, taken together, amounted to 1029/960 parts or to 107,1875% of the property. The applicants appealed, arguing that the claimants had lacked standing; that the claim had been time-barred; and that the court had not established the facts concerning their family links with the predecessors, had improperly refused to admit evidence and had erroneously applied the substantive law. On 23 January 2015 the Bitola Court of Appeal upheld the first-instance judgment. The applicants lodged appeals on points of law with the Supreme Court, reiterating the complaints they had raised in their appeals.

3.  On 6 March 2015 the first applicant submitted an addendum to his appeal on points of law, relying on section 343 (2) (13) of the Civil Proceedings Act. He argued, inter alia, that the lower courts had ordered the applicants and the third defendant to pay and transfer to the claimants property and money exceeding by 7.25% the total value of the inheritance that had been the subject of the disputed proceedings. He further argued that the applicants and the third defendant had not only been deprived of their own share of the inheritance, but in order to pay to the claimants the adjudicated sums, they needed to supplement from their own pocket the property which they had previously received in inheritance. On 26 October 2016 the Supreme Court dismissed the applicants’ appeals on points of law without expressly referring to the first applicant’s addendum of 6 March 2015. On 7 February 2017 it summarily dismissed his request to give a supplementary judgment, finding that although it had not expressly referred to the addendum of 6 March 2015, “it took them into consideration during the decision-making process, but found that they did not have an impact on making a different decision”.

4.  On 10 and 11 January 2017 the judgment of 26 October 2016 was served on each of the second applicant’s two lawyers. On 12 January 2017 the Supreme Court’s judgment of 26 October 2016 was served on the first applicant.

5.  On 5 June 2017 the first-instance court dismissed a request for correction of the first-instance judgment of 18 March 2014 lodged by two claimants, who had argued that the judgment could not be enforced because it had awarded certain claimants larger parts of the property than they had been entitled to. The court held that it could in any event not make such a correction, which would amount to amending the first-instance judgment (измена на пресудата).

6.  The applicants complained about the fairness of the proceedings and that the domestic courts had ordered them to pay the claimants an amount exceeding the total value of the inheritance they had previously received, without taking into account any share that should remain with the applicants.

THE COURT’S ASSESSMENT

7.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

8.  The Government submitted that the second applicant had lodged the application outside the six-month time-limit. The Court observes that the envelope in which the second applicant dispatched her application bears a postmark of 10 July 2017 (see, for the relevance of this date, Vasiliauskas v  Lithuania [GC], no. 35343/05, § 117, ECHR 2015), which is within six months from the date when the final judgment in her case was served on her lawyers (see paragraph 4 above and compare, for example, Ataykaya v. Turkey, no. 50275/08, § 40, 22 July 2014). This objection must therefore be dismissed.

9.  The Government further submitted that the applicants had either not exhausted domestic remedies at all or had not done so properly.

10.  The general principles regarding the exhaustion of domestic remedies are set out in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).

11.  The Court observes that none of the applicants raised the complaint brought before the Court in their appeals against the first-instance judgment, nor did they do so in their subsequent appeals on points of law. However, the first applicant did so in the addendum to his appeal on points of law dated 6 March 2015. In its judgment of 26 October 2016 the Supreme Court did not expressly refer to this addendum and in its decision of 7 February 2017 it stated that “it took them into consideration during the decision-making process, but found that they did not have an impact on making a different decision”. From this wording it does not appear that the Supreme Court rejected the addendum as inadmissible, nor did the Government raise any arguments to that effect. They argued that under section 375 (1) (2) of the Civil Proceedings Act an appeal on points of law could be lodged for procedural violations of section 343 (1) of the Act which had been made only in the appeal proceedings. However, the first applicant complained about a procedural violation under section 343 (2) of the Act, which allows, among other things, for the possibility to challenge a judgment which is unclear, contradictory or lacks reasons. In the absence of any indication by the Supreme Court in the present case (see paragraph 3 above) or of any relevant case-law examples, the Court cannot speculate as to whether the Supreme Court lacked jurisdiction to examine on their merits the arguments raised by the first applicant in his addendum and concludes that it did examine them but considered them irrelevant to the outcome of the proceedings. Given those circumstances, that complaint cannot be dismissed for failure to exhaust domestic remedies (see, mutatis mutandis, Ulemek v. Croatia, no. 21613/16, § 118, 31 October 2019).

12.  In view of the Supreme Court’s finding, there is furthermore no reason to believe that the domestic proceedings would have taken a different course had the second applicant raised the same argument in her appeal on points of law (see Bilbija and Blažević v. Croatia, no. 62870/13, § 94, 12 January 2016; and Vasilkoski and Others v. the former Yugoslav Republic of Macedonia, no. 28169/08, § 46, 28 October 2010).

13.  Lastly, in view of the findings in paragraphs 11 and 12 above, the second applicant’s failure to support the subsequent request for correction of the first-instance judgment of 18 March 2014 (see paragraph 5 above) does not amount to non-exhaustion of domestic remedies.

14.  Consequently, the Government’s non-exhaustion objection must be dismissed.

15.  This complaint is furthermore not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

16.  The general principles relevant to the applicants’ complaint have been summarised in Pavlović and Others v. Croatia (no. 13274/11, §§ 43-45, 2 April 2015). In particular, the effect of Article 6 § 1 of the Convention is, inter alia, to place tribunals under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision. An error of law or fact by the national court which is so evident as to be characterised as a “manifest error” – that is to say, an error that no reasonable court could ever have made – may be such as to disturb the fairness of the proceedings (ibid., § 45).

17.  In addition, the guarantees enshrined in Article 6 § 1 include the obligation for courts to give sufficient reasons for their decisions. This obligation cannot be understood as requiring a detailed answer to every argument (see, among many others, Paun Jovanović v. Serbia, no. 41394/15, §§ 100-101, 7 February 2023). If, however, a submission would, if accepted, be decisive for the outcome of the case, it may require a specific and express reply by the court in its judgment (see Petrović and Others v. Montenegro, no. 18116/15, § 41, 17 July 2018).

18.  The Court observes that the first-instance court ordered the applicants and the third defendant to pay or transfer to the claimants parts of property exceeding, in sum, the total amount of that property acquired by the applicants and the third defendant in previous restitution proceedings. It further notes that in subsequent proceedings before the domestic courts, certain claimants themselves had argued that some of them had been awarded larger parts of the property than those they had been entitled to (see paragraph 5 above). It is disputed between the parties, and it is not the Court’s task to decide, whether this was a calculation, legal or other error. It suffices to conclude that it is a manifest error in the findings of the first‑instance court (compare Pavlović and Others, cited above, § 49).

19.  As stated above, the applicants failed to raise this error in their appeals against the first-instance court’s judgment, which would have allowed the second-instance court to correct the error. However, the first applicant, in the addendum to his appeal on points of law to the Supreme Court, did raise this argument, which, however, remained unanswered by the Supreme Court in its judgment of 26 October 2016. In its subsequent decision on the first applicant’s request for a supplementary judgment, the Supreme Court found summarily that the first applicant’s argument could not lead to a different outcome. The Court cannot but conclude that the Supreme Court did not conduct a proper examination of, and did not provide an adequate reasoning concerning the first applicant’s argument, as required under Article 6 of the Convention (see paragraphs 16 and 17 above) and therefore failed to remedy the error in the lower courts’ judgments. While a scarce reasoning in a decision of the highest court is, in principle, acceptable, the Court considers that in the circumstances of the present case it failed to satisfy the requirements of a fair trial (see, mutatis mutandis, Atanasovski v. the former Yugoslav Republic of Macedonia, no. 36815/03, § 38, 14 January 2010).

20.  There has accordingly been a breach of Article 6 § 1 of the Convention.

21.  The applicants’ complaints that they were ordered to pay and transfer to the claimants property larger than that which they had previously received in inheritance fall to be examined also under Article 1 of Protocol No. 1 to the Convention.

22.  Having regard to its findings under Article 6 § 1 of the Convention, the Court cannot speculate as to what the outcome of the proceedings might have been had it not been for that violation. The Court notes that the applicants now have an opportunity to request the reopening of the proceedings under section 400 of the Civil Proceedings Act (see Strezovski and Others v. North Macedonia, nos. 14460/16 and 7 others, § 95, 27 February 2020). In those circumstances the Court finds that this complaint is not ready for consideration at this stage and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention (see, mutatis mutandis, Centre for the Development of Analytical Psychology v. the former Yugoslav Republic of Macedonia, nos. 29545/10 and 32961/10, § 50, 15 June 2017, and the cases cited therein).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  The first applicant claimed a minimum of 19,037 euros (EUR) in respect of pecuniary damage, EUR 10,000 in respect of non-pecuniary damage and the equivalent of EUR 1,765 in respect of costs and expenses incurred before the Court. The second applicant claimed EUR 300,000 in respect of pecuniary damage and costs and expenses incurred in the domestic proceedings, EUR 100,000 in respect of non-pecuniary damage and the equivalent of EUR 1,150 in respect of costs and expenses incurred before the Court.

24.  For the same reasons as those stated in Centre for the Development of Analytical Psychology (cited above, § 55), the Court makes no award of pecuniary damages. Making its assessment on an equitable basis, it awards each of the applicants EUR 3,600 in respect of non-pecuniary damage, plus any tax that may be chargeable. Having regard to the documents in its possession, the Court awards the first applicant EUR 1,480, plus any tax that may be chargeable to him, for the costs incurred in the proceedings before it. In the absence of any relevant supporting documents to show that the second applicant paid or was bound to pay the amounts claimed for costs and expenses, the Court rejects her respective claim as unsubstantiated.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 3,600 (three thousand six hundred euros) to each of the applicants, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(ii)  EUR 1,480 (one thousand four hundred and eighty euros) to the first applicant, plus any tax that may be chargeable to him, in respect of costs and expenses; and

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 22 October 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Diana Sârcu
 Deputy Registrar President